Article excerpt

The Rev. Paul Simmons couldn't sit idly by while the Kentucky legislature appropriated $11 million in public funds to support a Baptist university.

It wasn't because the Louisville resident was against religion or opposed to improving education, but because he wanted to uphold the historic tenets of the Baptist tradition, as well as the U.S. Constitution.

Simmons, an ordained Baptist minister, was deeply disappointed that the University of the Cumberlands (UC), a school affiliated with both the Southern Baptist Convention and the Kentucky Baptist Convention, wanted to accept $10 million from the state for the construction of a pharmacy school and another $1 million for pharmacy scholarships.

Simmons, former president of the Americans United Board of Trustees, is an ardent advocate of religious liberty and thinks other Baptists should be as well. That's why he joined as a plaintiff in a lawsuit challenging the Bluegrass State's funding of the Baptist university in a 2006 General Assembly budget bill.

"I expressed my ambivalence about having to go up against present-day practices, but I was doing so in good faith and as a judgment against current Southern Baptist Convention leaders," he said. "They needed to be reminded of their history and tradition and the reasons for the Baptist witness."

The litigation eventually made its way to the Kentucky Supreme Court, which has now unanimously held that the legislature's action violated the separation of church and state.

In an April 22 opinion written by Justice Lisabeth Abramson, the court cited the Kentucky Constitution's clear provision barring tax aid to religious education. That mandate provides even stronger protection for taxpayers than the federal constitution.

Section 189 states, "[N]o portion of any fund or tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian or denominational school."

The justices agreed that the legislature's grant of $10 million to build a pharmacy school plainly violated this directive. (The court also found that the $1 million for a scholarship program was unconstitutional under a separate provision of the state constitution.)

"Although UC agreed ... not to use any of the pharmacy building funds for 'church, sectarian or denominational' purposes, this [declaration] cannot change the character of the institution itself," she wrote. "It is precisely the type of school referenced in Section 189 [of the Kentucky Constitution], and clearly state funds have been 'appropriated to, or [will be] used by, or in aid of' the school."

Abramson concluded, "If Kentucky needs to expand the opportunities for pharmacy school education within the commonwealth, the Kentucky General Assembly may most certainly address that pressing public need, but not by appropriating public funds to an educational institution that is religiously affiliated."

According to UC spokeswoman Daphne Baird, the Williamsburg, Ky., university will move on.

"Other pharmacy schools are being created and others expanded since the critical need was brought to the attention of the public as a result of this case," Baird said. "Thus, in our view, we have accomplished our purpose, which was to meet a critical need for pharmacists in the Appalachian area and beyond."

The University of the Cumberlands v. Pennybacker ruling is the most important church-state decision under the Kentucky Constitution in almost 30 years, according to Louisville attorney David Tachau, who filed the lawsuit in 2006.

"Kentucky's constitution is more explicit and more emphatic than the federal Constitution about creating a wall of separation between the use of public funds and support for religious secondary and post-secondary schools," said Tachau, a member of the Americans United National Advisory Council. …

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The Christian Science Monitor, July 9, 1996